Tennessee Valley Bank v. S.M. Avery & Sons

• Decision Date: 26 November 1913
• Citation: 63 So. 813,9 Ala.App. 363
• Court: Alabama Court of Appeals
• Parties: TENNESSEE VALLEY BANK v. S.M. AVERY & SONS.

63 So. 813

9 Ala.App. 363

TENNESSEE VALLEY BANK v. S.M. AVERY & SONS.

Court of Appeals of Alabama

November 26, 1913

Appeal from Circuit Court, Winston County; Travis Williams, Special Judge.

Action by the Tennessee Valley Bank against the firm of S.M. Avery &amp Sons and its members. From a judgment for defendants plaintiff appeals. Reversed and remanded.

The facts sufficiently appear from the opinion. The following charges were given at defendant's request:

"(23) If the jury believe from the evidence that the words '&amp Sons, by S.M.A.,' was written on said note, after same had been signed by S.M. Avery, and without his knowledge or consent, then you will find for defendants in this case as to any liability for the payment of the note sued on."

"(22) If the jury believe from the evidence in the case that the word 'seven,' which is erased in said note, was so erased after it was signed by S.M. Avery and Will Avery, without their consent, they will find a verdict for defendants as to liability for payment for the note sued on."

"(25) If you believe from the evidence in this case that S.M. Avery did not tell Barber to tell Will Avery to sign the note or represent to Barber that he would get Will Avery to sign the note, then you cannot find a verdict for the plaintiff on the note sued on."

"(36) If the jury believe from the evidence that the money sued for has been paid to the bank by Barber, then plaintiff cannot recover in this case."

J. McVay, of Haleyville, and Kirk, Carmichael & Rather, of Tuscumbia, for appellant.

W.V. Mayhall, of Haleyville, and Ray & Cooner, of Jasper, for appellees.

PELHAM J.

The appellees were customers of the banking institution conducted by appellant at Haleyville, Ala., and, during the course of business between the parties, S.M. Avery went to the bank to pay the balance due the bank on a partnership note of S.M. Avery & Sons and to get a draft cashed for $250 drawn on a company at St. Louis, Mo. The manager or cashier of the bank paid to Mr. Avery the money called for by the draft, and marked the note of Avery & Sons held by the bank paid, and surrendered it to Avery without having retained from the proceeds of the draft, or otherwise received, the balance due the bank on this note, amounting to $140.47. At least this is the contention of the appellant bank and is borne out by the positive, direct testimony of the bank officials, and these facts were not unequivocally and directly denied by Avery, who testified generally that he did not consider that he owed the amount claimed as the balance due, but that he did not count the money paid to him on the St. Louis draft and did not know how his or his firm's account with the bank stood.

Mr. Avery, after receiving the money on the draft, remained in the bank for some time, engaged in general conversation with the bank official with whom he had transacted this business, and then left the bank to take a train to his home in Sheffield, Ala., a nearby town. Shortly afterwards, during the same day, this officer of the bank discovered the mistake, or his failure to collect the balance due the bank on the note he had canceled or marked paid and handed to Avery, and at once endeavored to communicate with Avery by telephone, but, due to the defective condition of the telephone service, was unable to do so, whereupon, on the same day, the bank official wrote to Avery, calling his attention to the mistake made and asking him to send the bank $140.47, the amount due on the note that had been marked paid and delivered to him. Not hearing from Avery, a representative of the bank in a few days went to see him, but failed to get payment or an acknowledgment of the bank's contention that the mistake had been made, although Avery's denial of the facts, insisted upon by the bank as constituting the basis of its claim that the error or mistake had been made, was rather equivocal. Some weeks subsequent to this, the manager of the bank went to the home of Avery, in Sheffield, Ala., and induced him to execute a note to the bank for the amount of the balance claimed by it to be due on the note of S.M. Avery & Sons that had been marked paid and surrendered to him. The note was afterwards also signed by William Avery individually, and this action is brought on that note; the common counts being joined with special counts declaring on the note.

The defendants pleaded the general issue and numerous special pleas, among others, pleas averring material alteration in the note and failure of consideration. The plaintiff moved to strike the pleas alleging an alteration and failure of consideration and assigns as error the action of the court in overruling the motion; but no exception is shown in the record proper or by any recital in the bill of exceptions to have been reserved to the court's ruling on the motion to strike the pleas.

"In order to review a ruling of the court on a motion to strike pleading, the record proper of the trial court should show a judgment by the court, and exception to such judgment should be shown by the bill of exceptions." Gaston v. Marengo Imp. Co., 139 Ala. 465, 36 So. 738, quoted with approval in the case of Lay v. Postal Tel. Cable Co., 171 Ala. 172, 54 So. 529, 531.

Besides "demurrer, and not motion to strike, is the appropriate method of testing the sufficiency of pleas. Motion to strike should be granted only...